The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A leading QC yesterday urged the Government and Supreme Court to change their approach to ‘public interest litigation’, calling on the latter in particular to not “apply hard-fought commercial principles” to all Judicial Review actions.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business that so-called ‘grassroots organisations’ and Family Islanders with meagre resources were already at a disadvantage when it came to battling the Government and wealthy developers in court.

Speaking as a ‘third party interested observer’ on the recent Judicial Review application on Bimini’s controversial cruise terminal, where Justice Hartman Longley rejected the Bimini Blue Coalition’s injunction application and demanded security for costs, Mr Smith said the Supreme Court was the only forum where such parties could seek redress and protection of their rights.

He called on the Supreme Court to “gird itself with its sword and shield to help protect the locals in the Family Islands”, and not impose onerous ‘security for cost’ demands in such cases - as it often does when two wealthy commercial litigants are involved.

“It is unfortunate that in public interest litigation produced by grassroots organisations, the Supreme Court of the Bahamas holds to hard-fought commercial principles,” Mr Smith told Tribune Business.

“In England, there are many cases where there is a recognition that in Judicial Review, especially where the Government is involved, the cases ought not to be fought like private commercial litigation; that all cards must be on the table from inception; and there is an obligation on the Government defendants to make early on full and frank disclosure; an administrative duty to almost assist the court in public interest issues.”

He added, though, that in many of the environmental-related Judicial Review actions he has initiated - over Baker’s Bay, BEC’s Wilson City power plant and Nygard Cay - the Government has sought to knock the matter out on technicalities, such as whether the organisation bringing the action has any standing.

“Regrettably, the Attorney General’s Office still advances technical and preliminary objections that are designed to derail determination of the merits of Judicial Review speedily,” Mr Smith told Tribune Business.

“In most of the environmental cases initiated, it is rare that the merits are determined early on. By the time of the trial, most of the environmental impact, and social and cultural impact, has occurred, and grassroots organisations and locals are left to the spoils rather than what previously existed.”

Calling on the Supreme Court to not “apply private law, hard-fought commercial practices” in public interest Judicial Review actions, Mr Smith said environmental activists and Family Islanders did not have the benefit of legal aid in the Bahamas.

As a result, many ‘grassroots organisations’ “struggle to be created, struggle to be funded, struggle to hire attorneys and to sustain a fight against the Government and commercial developers in the Family Islands.

“All the cards are stacked against the Family Islanders in these situations,” Mr Smith added. “It is only the Supreme Court where Family Islanders can come to have recourse to justice, and I beg the Supreme Court to lend a helping hand in these cases. It’s time the judges came to the rescue of the Family Islands. We are at a disadvantage.”

The well-known QC pointed out that the developer in the Bimini case, the Malaysian conglomerate Genting, was “one of the richest and most powerful” companies in the world.

“Who can the Biminites turn to but the courts to give them some succour?” Mr Smith asked.